Karnataka High Court

Shri. Ishwarappa @ Ishwar S/O ... vs Sri. Basavaraj S/O Mallappa ... on 27 May, 2022

Bench: Rajendra Badamikar

                            1




          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 27TH DAY OF MAY 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR


              MFA No.201350/2014 (MV)

BETWEEN:

SHRI. ISHWARAPPA @ ISHWAR
S/O YALLAPP BUDDAR,
AGE: 37 YEARS,
OCC:ELECTRICAL CONTRACTOR CUM BUSINESS,
R/O KAMBAG GALLI, TQ. BILAGI, DIST: BAGALKOT.
NOW AT JAL NAGAR, BIJAPUR-586101.
                                            ...APPELLANT

(BY SRI.S S MAMADAPUR, ADVOCATE)

AND
1.     SRI. BASAVARAJ S/O MALLAPPA CHIKKAREDDI,
       AGE: 37 YEARS, OCC:BUSINESS,
       R/O TUMBARMATTI, TQ.BILAGI,
       DIST: BAGALKOT-584101.

2.     SRI. NAMDEV S/O THAKRU LAMANI,
       AGE: 42 YEARS, OCC: BUSINESS,
       R/O KUNDARAGI TANDA, TQ:BILAGI,
       DIST: BAGALKOT-584101.

3.     THE BRANCH MANAGER,
       UNITED INDIA INSURANCE CO. LTD.,
        S.S.ROAD, BIJAPUR-586101.
                                2



4.    SRI. PRAVEENKUMAR S/O VIRUPAXI DEYANNAVAR
      AGED ABOUT: 37 YEARS, OCC: BUSINESS,
      R/O TAKKALAKI PLOT, TQ. BILAGI,
      DIST: BAGALKOT-584101.
                                           ...RESPONDENTS
(BY SRI. SHIVANAND PATIL, ADV. FOR R3
 R1, R2 & R4 ARE SERVED )

   THIS MFA FILED U/S. 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED- 30.06.2014 PASSED IN MVC
NO- 790/2012 ON THE FILE OF MOTOR ACCIDENT CLAIMS
TRIBUNAL BIJAPUR AT BIJAPUR, PARTLY ALLOWING THE CLAIM
PETITION AND SEEKING ENHANCEMENT OF COMPENSATION.

      THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal is filed by the claimant under Section

173(1) of M.V.Act, challenging the judgment and

award dated 30.06.2014 passed in MVC No.790/2012

by the MACT, Bijapur, seeking enhancement of

compensation.

2. For the sake of convenience, parties are

referred with the ranks occupied by them before the

Tribunal.

3. The factual matrix leading to the case are

that on 15.01.2012 at about 2.00 p.m., the claimant

along with others was going from Bilagi to Janamatti

village for his personal work in Auto rickshaw cab

bearing registration No.KA-29/9371. When the vehicle

came near Hasan Dongri Darga, at that time, the

driver of Auto Rickshaw Cab drove it in a high speed

as well as in a rash and negligent manner and dashed

to the motorcycle which was coming from opposite

direction resulting in the accident. Due to the said

impact, the claimant and other inmates sustained

injuries and claimant has suffered grievous injuries.

Immediately, the claimant and other injured were

shifted to Taluka Hospital, Bilagi and later on claimant

was shifted to Basanagouda Patil Memorial Hospital,

Bijapur, wherein he was admitted for 15 days as an

indoor patient for treatment. Claimant is permanently

disabled because of accidental injuries and hence he

filed the claim petition.

4. The respondent Nos.1 and 2 are the

owners of the Auto rickshaw cab and respondent No.3

is the insurer of the Auto rickshaw cab in which the

claimant was traveling while respondent No.4 is the

owner of two wheeler which was involved in the

accident.

5. The respondent Nos.1 and 2 have appeared

but did not contested the matter while respondent

No.4 remained ex-parte. The respondent No.3 insurer

of the Auto rickshaw cab filed objections denying the

allegations and assertions made thereunder. The

policy has been admitted and on the contrary it is

contended that the rider of the motorcycle was not

possessing valid and effective driving license and the

accident is because of the contributory negligence on

the part of the rider of the motorcycle. He has also

taken contention that the driver of the Auto rickshaw

cab was not possessing valid and effective driving

license and there is breach of policy conditions. As

such sought for dismissal of the claim petition against

respondent No.3.

6. The claimant was examined as PW.1 and

one doctor was examined as PW.2 and placed reliance

on 15 documents marked as Exs.P1 to 15. The

respondent No.3 has got marked two documents as

Exs.R1 and R2 alone but did not lead any oral

evidence.

7. After appreciating the oral and

documentary evidence, the tribunal has awarded the

total compensation of Rs.1,86,000/- by fastening the

liability on respondent Nos.3 and 4. Further the

liability of 50% was fastened on respondent No.3 and

50% on respondent No.4, who was the owner of the

motorcycle on the ground of composite negligence.

The compensation awarded by the tribunal under the

various heads is as under;

Sl.No.         Heads                    Amount
1.        Pain & suffering              Rs.50,000/-
2.        Loss of income during         Rs.20,000/-
          treatment period
3.        Medical expenses              Rs.13,631/-
4.        Conveyance, attendant &       Rs.10,000/-
          nourishment
5.        Loss of future income on      Rs.92,160/-
          account of disability
               Total                    Rs.1,85,791/-
               Rounded off to           Rs.1,86,000/-

8. Being dissatisfied with the quantum of

compensation awarded by the tribunal as well as

liability, the claimant has filed this appeal seeking

enhancement of compensation.

9. Heard the arguments advanced by the

learned counsel for the appellant and learned counsel

for the respondent No.3-Insurer. Perused the records.

10. The main contention of the learned counsel

for appellant is that the tribunal has erred in fixing the

liability of 50% each on respondent Nos.3 and 4 and

he would contend that in view of the full bench

judgment of the Hon'ble Supreme Court in the case of

Khenyei Vs. New India Assurance Co. Ltd., &

Others, reported in 2015(9) SCC 273. It was the

option to claimant to claim the entire compensation

from any of the tort feasors. But the tribunal has no

power to fix the liability to the limited extent on tort

feasors. He would also contend that the income taken

by the tribunal was on lower side. Hence, he would

seek for enhancement of compensation and prays to

allow the appeal.

11. Per contra, learned counsel appearing for

respondent No.3-Insurance Company would support

the order of the tribunal contending that the tribunal

after appreciating the oral and documentary evidence

has rightly awarded the just compensation by fixing

the liability on respondent Nos.3 and 4 equally.

Hence, he would contend that the judgment and

award passed by the tribunal does not call for any

interference and prayed for dismissal of the appeal.

12. Having heard the arguments and perusing

the records, it is evident that the claimant has

suffered injuries in the road traffic accident. There is

no serious dispute of the fact that the claimant was

traveling the Auto rickshaw cab and it collided with

motorcycle bearing registration No.KA-29/S-1310. The

contributory negligence fixed by the tribunal is 50%

each on the rider of the motorcycle as well as on the

driver of Auto rickshaw cab.

13. It is to be noted here that both the tort

feasors are before the Court and respondent No.4 did

not contest the matter. The main contention of the

appellant is that the discretion is with the appellant to

recover the entire compensation amount from any of

the tort feasors and the remedy for other tort feasors

who were fastened with limited liability to recover it

from other tort feasors in execution proceedings. In

this context, he placed reliance on the citation stated

supra.

14. The Full Bench of the Hon'ble Apex Court in

the said decision cited supra has made following

observations;

(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the

other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.

(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.

15. There is no challenge regarding the

composite negligence of 50% each on the part of the

driver of Auto rickshaw cab and rider of the

motorcycle. However, in view of the decision stated

supra, it is the discretion of the claimant to claim the

entire compensation from any of the tort feasors. The

Hon'ble Apex Court has clearly observed in the above

cited decision that the determination of the extent of

negligence between the joint tort feasors is only for

the purpose of their inter se liability so that one may

recover the sum from the other after making whole of

payment to the plaintiff/claimant to the extent it has

satisfied the liability of the other. Under these

circumstances, the liability of respondent Nos.1, 3 and

4 is joint and several. However, from composite

negligence is 50% each as observed by the tribunal

and it is the discretion of the claimant to claim the

entire compensation from any one of them. It is not

permissible for the tribunal for apportionment of the

compensation between two joint tort feasors.

16. As regards quantum, the evidence clearly

disclose that age of the claimant is about 35 years.

Though he claims that he was earning Rs.10,000/- per

month, no evidence is placed on record. The accident

is of the year 2012. As per the Lok Adalath Chart,

this Court is consistently taking the notional income of

Rs.6,500/- per month for the accident occurred in the

year 2012. The claimant is aged about 35 years at the

time of the accident and multiplier applicable to his

age group is '17'.

17. The claimant asserted that he has suffered

permanent disability and PW.2 has deposed that the

disability to claimant is 30%-40% to the right lower

limb and the tribunal has taken at 12% to the whole

body. Admittedly, PW.2 is not the treated doctor.

Further he is not certain as to the extent of disability

and he claims that it may be between 30 %- 40%.

However, the tribunal has taken the disability to the

whole body at 12% without there being any proper

evidence. Even, if 30% is taken to the right lower

limb, it would works out to 10% to the whole body.

Hence, the disability is to be taken at 10% only.

18. Thus, the claimant is entitled for

compensation of Rs.1,24,800/- (Rs.6,500/- x 12 x 16

x 10%) on account of 'loss of future income'.

19. The document Ex.P13 discloses that the

claimant has spent a sum of Rs.86,649/- towards

medical expenses and it is rounded off to Rs.87,000/-

and tribunal has wrongly awarded less under this

head.

20. The injury certificate disclose that there is

posterior dislocation of right hip, fracture of tibia and

fibula and cut lacerated wound.

21. Considering the nature of injuries suffered

by the claimant, he ought to have been prevented

from attending the work for at least 3 -4 months.

Hence, under the head loss of income during laid up

period the claimant is entitled for a sum of

Rs.25,000/-.

22. The tribunal has awarded a sum of

Rs.10,000/- under the head of conveyance, attendant

charges and nourishment etc, which does not call for

any interference and Rs.50,000/- has been awarded

under the head pain and suffering, which also does

not call for any interference.

23. The tribunal has not awarded any

compensation under the head loss of amenities and

considering the dislocation of right hip and fracture of

tibia and fibula, the claimant is entitled for a sum of

Rs.30,000/- under the head loss of amenities.

24. Looking to the facts and circumstances, the

claimant is entitled for total compensation of

Rs.3,26,000/- as against Rs.1,86,000/- awarded by

the tribunal under the following heads;

Sl.No.          Heads                         Amount
1.         Pain & suffering                   Rs.50,000/-
2.         Loss of income during              Rs.25,000/-
           treatment period
3.         Medical expenses                   Rs.87,000/-
4.         Loss of amenities                  Rs.30,000/-
5.         Conveyance, attendant &            Rs.10,000/-
           nourishment
6.         Loss of future income              Rs.1,24,800/-
                Total                         Rs.3,26,000/-

25. Further, the respondent No.3-Insurance

Company is liable to pay entire compensation with a

liberty to recover 50% of the compensation amount

from respondent No.4 as per the dictum of the Hon'ble

Apex Court referred supra. Hence, the appeal needs

to be allowed in part.

26. Accordingly, I proceed to pass the

following;

ORDER

(a) The appeal is allowed in part.

(b) The claimant is held entitled for total

compensation of Rs.3,26,000/- as against